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Insolvent Trading Safe Harbour
1 October 2021
Key points: • The eligibility requirements to trigger the safe harbour protections are too onerous and should be amended • Use of the safe harbour should be made more cost effective • The safe harbour regime would be improved by reducing complexity and providing more certainty in interpretation • The safe harbour regime should provide for better incentives for the involvement of professional advisers • Provide for advice to be obtained from a registered liquidator to ensure that it is appropriate • Increase awareness of the safe harbour regime • Any changes to the disclosure requirements for safe harbour should recognise that disclosure of the safe harbour restructuring plan is not appropriate in all circumstances • Consider shifting the burden of proof to establish safe harbour defences to insolvent trading
Download PDFUnfair Contract Terms – FICA Submission
1 October 2021
While individual FICA members have provided their own detailed submissions, and these highlight several specific issues relevant to their membership, the purpose of this submission is to outline the key areas of common agreement between FICA members and suggested next steps. Topics covered include: – Introduction of civil penalties – Flexible remedies – Rebuttable presumption – Flexible remedies – Injunctions – Existing remedies available under the UCT regime – Definition of Small Business and Monetary Value of Contracts – Transitional provisions
Download PDFImproving Schemes of Arrangement
22 September 2021
The ABA suggests that in finalising the proposal an updated analysis of the existing Scheme regime would be of benefit to consider current market practices which may have evolved since the Productivity Commission’s 2015 report ‘Business Set-up, Transfer and Closure’.
Download PDFUnfair Contract Terms
20 September 2021 Private
The ABA strongly supports an effective regulatory regime that provides consumers and small businesses with an appropriate and proportionate level of protection from Unfair Contract Terms (UCTs).
Download PDFCPG 511 APRA Letter
16 September 2021
In this letter we revert on two of the matters discussed at the meeting for consideration by APRA in finalising the guidance: 1. Arrangements for employees commencing post 1 January 2023 but before the commencement of the new performance period 2. Buyouts
Download PDFDecision Proposal 208: Binding NFRs
10 September 2021 Private
The ABA’s view is that the mandating of NFRs is premature and should be considered and evaluated after ADI data holders have fully implemented the read access functionality of Open Banking.
Download PDFTreasury Laws Amendment Bill 2021
10 September 2021
ABA supports the proposed amendments being considered by Parliament expeditiously to give industry ample time to implement changes to comply with the reforms. As such ABA strongly supports the proposed bill being finalised and introduced into Parliament as soon as practicable. However, the ABA also asks Treasury to consider making a number of further amendments and clarifying a small number of matters in the Bill. Doing so would enhance the effectiveness and benefit of the Bill for industry.
Download PDFReporting Standard ARS 720.1
8 September 2021
We request that the new ARS 720.1 come into effect on 1 March 2022 so that both ARF 220.0 and ARF 720.1 will be first prepared on the new standards consistently for the period ended 31 March 2022.
Download PDFDraft AML/CTF Rules Consultation – Chapter 79,80,21 and 48
3 September 2021
The ABA supports recently enacted legislative changes to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) that require reporting entities to verify their customers’ identity before providing designated services. The ABA also supports the provision for special circumstances that justify carrying out applicable customer identification procedures (ACIP) after the commencement of a designated service. While generally in support of this Chapter, the ABA seeks additional clarity over the scope of the proposed special circumstances, particularly in relation to opening an account and the initial deposit. We also support broader changes proposed to Chapters 21 and 48 of the rules. The submission puts forward a proposal regarding Chapter 80 on the basis that there may be unintended consequences with the current drafting, such as exempting a broader range of activities.
Download PDFConsumer Data Right – Strategic Assessment
2 September 2021 Private
Whilst further detail is provided in the annexure, the ABA makes the following recommendations in respect to the expansion of the CDR: • Treasury to develop optionality for designating both datasets and sectors to maintain the growth momentum of the CDR. With three sectors at varying stages of designation, Treasury, and the Data Standards Body (DSB) now has sufficient expertise to ramp up the growth of the ecosystem with multiple concurrent designation of datasets and sectors. • Digital Platforms, Digital Accounting Platforms, Non-bank lenders (particularly buy-now-pay-later) be scheduled for designation in 2023 to support the streamlining and efficiency of credit decisions as well as adherence to responsible lending obligations enabling consumers more choice and timely banking solutions. • Reciprocity be formally introduced in 2022.
Download PDFLIBOR Discussion Paper – AFMA/ABA/FSC Submission
1 September 2021
At a high-level, AFMA, ABA and the FSC would support the ATO outlining a practical approach to the taxation consequences on IBOR-transition which leverages existing processes being undertaken by affected taxpayers and categorises the various affected contracts from a risk perspective. This would ensure that compliance resources are appropriately allocated. The approach adopted in PCG 2017/8 regarding internal derivatives would be an appropriate precedent for such an approach.
Download PDFElectronic Mortgages in WA
31 August 2021
Electronic signatures can mitigate fraud risk by implementing multi-layers and factors of security and authentication, and the technology can generate an auditable electronic record, tamper proof seal, and use multiple ways to authenticate the signatory’s identity. Most mortgages are not created pursuant to deeds. As such consideration of reforms in Western Australia should distinguish between the reforms that are necessary to enable electronic mortgages including the counterpart mortgage, and the reforms that need to be made to enable electronic deeds. The ABA strongly supports reforms to enable electronic deeds and not requiring most types of deeds to be witnessed.
Download PDFAustralia’s cyber security regulations and incentives
27 August 2021
The ABA sees an important role for government in coordinating messaging and cyber security uplift efforts across stakeholder groups and sectors, and setting clear expectations of what entities should do to protect themselves and their customers. The ABA acknowledges that there is a difficult but important balance to be struck between, on the one hand, economy wide, consistent cyber security regulatory requirements that improve the nation’s cyber risk position and, on the other hand, more specific or targeted measures which need to respond to specific risks and/or levels of risk. Further clarity will also be required for entities that may be indirectly subject to SOCI Act requirements, and for entities that may move in and out of the SOCI Act regime. The ABA seeks further information about the legal form that the governance standards would take and what legal standing (if any) the standards would have. The ABA asks for clarity on the interaction between the proposed standards and other regulatory regimes.
Download PDFNoting Paper 207: Draft v3 Rules Analysis – Anticipated Data Standards
24 August 2021 Private
A key recommendation of the ABA is for the information security requirements, which are currently required for Accredited Data Recipients, to be extended to all other recipients of banking data. The draft Rules 3.0 proposed ‘daisy chaining’ of banking data enables consumers’ banking data to travel from the most secure setting from the Data Holder to the Accredited Data Recipient, to a data sharing arrangement involving no requirements for security. This is problematic for the following reasons: • No security for banking data will make that data more susceptible to successful hacking activity. • Consumers expect a high level of security of their banking data. • Banks are unable to fully comply with their regulatory obligations to have oversight of the security of banking data.
Download PDFContingent Liquidity: Proposed Guidance
20 August 2021
The ABA supports maintaining an excess reserve of eligible assets for contingent funding to ensure stability during periods of stress. However, we have concerns regarding the revised requirements as currently proposed by APRA. In particular: 1. It is well-above international standards 2. It is proposed to include offshore operations 3. It is to apply at all times 4. An implementation pathway has not been proposed
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